Whole Life Tariffs, No Litvinenko Inquiry & Keeping Things Quiet – The Human Rights Roundup
15 July 2013
Welcome back to the UK Human Rights Roundup, your regular Swiss Army Knife of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
The focus of this week’s news was on the European Court on Human Rights’ views on whole life tariffs and miscarriages of justice, which has fed into the recent Abu Qatada deportation and continuing questions about the relationship between the UK, the Convention and the Court. Elsewhere, the Attorney-General was deemed to have lawfully exercised his override to suppress disclosure of Prince Charles’ letters, and there will be no public inquiry into the death of Litvinenko.
Supreme essay success
Top billing this week comes from our very own Daniel Isenberg’s fantastic winning essay in the UK Supreme Court, which has now been published on Guardian.co.uk – Do we need more or fewer dissenting voices in the UK supreme court? [Daniel did not put his own essay in top billing, it was me – but from everyone at UKHRB, we wish him hearty congratulations! Adam]
Litvinenko – no public inquiry, for now
Sir Robert Owen, the Judge in charge of the Alexander Livenenko Inquest, personally requested a Public Inquiry in early June due to the inability of the current inquest to hear secret evidence. He said that the Government should follow the example of the Azelle Rodney Inquiry which was held as an Inquiry so that sensitive evidence could be considered. The government has refused that request. The deceased’s family has called for judicial review of the refusal on grounds of irrationality – ObiterJ raises closed material at inquests in the context of these proceedings and provides some useful links to further information and background.
1COR’s Neil Garnham QC and Neil Sheldon are acting for the Home Office at the Inquest.
Hale on the clash of equalities
The Supreme Court’s incoming Deputy President, Lady Hale, gave an excellent speech last week on The Conflict of Equalities. Check out from page 14 in particular for an interesting preview on issues before the Supreme Court in next term’s gay couple bed and breakfast refusal cases.
Whole Life Tariffs
The European Court of Human Rights this week gave judgment in Vinter and others v UK, ruling that unless there was both a possibility of release and a possibility of review, “whole-life tariffs” breached Article 3 – see Rosalind English’s UKHRB post here, and you can hear Adam Wagner debating Mike Wetherly MP on “the human rights thing” on BBC Radio 5 Live here, from 7:45.
The Prime Minister “profoundly disagrees” with the ruling, and the government has six months to consider its response. The Justice Gap also focuses on the government’s response, noting that Chris Grayling said this decision reinforced his determination to limit the powers of Strasbourg; and Dominic Raab MP’s comments about the “warped moral compass” of the ECtHR.
Joshua Rozenberg takes this opportunity to examine the government’s options on the issue: he notes that “the government’s choice is between implementing the ruling and breaking its treaty obligations”. Powers under s. 30 of the Crime (Sentences) Act 1997 that allow a secretary of state to release a prisoner on licence where there are exceptional circumstances amounting to compassionate grounds do not apply in the case of a prison service order, unless the prisoner is terminally ill or physically incapacitated. Rozenberg also notes that for full compliance some form of review mechanism would also be required. Dominic Casciani’s analysis on the BBC focuses on the “massive” scale of the politics on these questions, even though it would appear “relatively eas[y]” for the government to solve the issue by creating a power to review whole life tariffs. His view is that this matter is in fact more serious than either Abu Qatada or prisoner voting.
Mary Riddell on The Telegraph takes the view that the Strasbourg court “as usual, has called it right”, and that this decision upholds principles of “redemption and discretion” that should underpin our approach to penal policy. Natasha Holcroft-Emmess on the Oxford Human Rights Hub take a similar position, opining that there has been an international shift towards a rehabilitative focus on imprisonment, rather than simply punishment.
Abu Qatada Fallout
Abu Qatada has finally left the building (see our own Adam Wagner’s views in The Times); and, as the Home Secretary has pointed out: “his departure marks the conclusion of efforts to remove him since 2001 and I believe this will be welcomed by the British public”. However, Theresa May’s statement also makes references to the “steps” being taken by the government (including the new Immigration Bill) to “put right” the layers of appeals available to foreign nationals whom the government seeks to deport. Accordingly, the dust from this departure is yet to settle fully. Carl Gardner on Head of Legal views the whole affair as a victory for both pragmatism and the rule of law. He praises the Home Secretary and considers the turning point to be the government’s acceptance of the “legal reality”. A particularly interesting perspective is his observation that, “in a small way, Abu Qatada’s case has exported human rights to Jordan”.
A different perspective comes from Victoria Brittain on The Guardian, taking the position that this is “state-sanctioned hatred of one man”, which has “left poison in our society”. Her solution would have been to engage with Abu Qatada (“a scholar with wide intellectual and cultural interests”), rather than to demonise him.
Following on from reporting that both May and Grayling have placed the UK’s relationship with the ECHR as an issue “on the table”, the longer-term impact of the Abu Qatada saga is explored by Mark Elliott. He points out that the ECHR-sceptics will need to be specific about their grievances: is it about the particular balancing exercise in this case; or the relationship between a UK government and a European court; or is it a particular overreaching by the Court on these facts? Accordingly, would these ministers find it acceptable if a similar decision was made under a UK Bill of Rights?
Miscarriage of justice… or not
In more Strasbourg news, Lorraine Allen has lost her bid for miscarriage of justice compensation following wrongful imprisonment for killing her son. More to come on this.
Kept Under Wraps: Prince Charles
As noted by Mark Elliot, the Administrative Court ruled this week that the Attorney-General lawfully exercised his override to prevent disclosure of letters written to ministers by Prince Charles (see also David Hart QC’s UKHRB post here). Elliott notes a number of points of particular interest: firstly, if the court is not satisfied that reasonable grounds exist, the exercise of the power will be unlawful; secondly, the burden is on the accountable person to show reasonableness; and thirdly that Parliament, not ministers, can override judicial decisions. Rob Evans on The Guardian noted that that publication intends to appeal the decision.
Three useful other roundups for you this week: firstly, the European Courts blog provides a summary of recent Strasbourg case-law, including life imprisonment; detention; witnesses; compensation following acquittal; trade unions for priests; and freedom of movement/association. Similar stories are also covered over on the ECHR Blog here. ObiterJ also provides summarised coverage of, amongst other things, the Vinter judgment; national profiles on the ECtHR website; the changes due at Strasbourg; and the Jimmy Mubenga inquest.
Also in the news:
- Labour accused by IDS of a “secret plan” to make claiming benefits a human right.
- Jimmy Mubenga has been found to have been unlawfully killed during his deportation through Heathrow.
- Court of Appeal permits extension to planning challenge beyond six weeks.
- The ECtHR is soon to hear an important case on voting rights in Russia.
- Satirical job application essay for Lord Chief Justice by Moses LJ provides food for thought… – full text here, via Legal Cheek
In the Courts
- Michael Black and John Morgan -v- Susanne Wilkinson  EWCA Civ 820 – Owner of bed and breakfast who refused to give double room to gay couple loses in Court of Appeal, which agrees there was direct and unjustified indirect discrimination.
- Evans -v- Attorney General  EWHC 1960 (Admin) – Attorney General had reasonable grounds to veto release of Prince Charles’ letters, rules High Court
- R (AA) v Secretary of State for the Home Department  UKSC 49 – Secretary of state didn’t unlawfully detain 17-yr-old under mistaken but reasonable belief he was over 18
- R (Massey) v Secretary of State for Justice  EWHC 1950 (Admin) – New policy of deporting foreign national IPP prisoners whose tariffs have expired doesn’t discriminate against non-foreign nationals who have to satisfy more stringent parole conditions before release
- Secretary of State for Communities and Local Government v San Vicente & Anor (Rev 1)  EWCA Civ 817 – Court of Appeal: no restriction on the Court’s discretion to allow amendments to claim form and no requirement for new grounds to bear resemblance to those originally pleaded.
- ALLEN v. THE UNITED KINGDOM (Application no. 25424/09) – Refusal to compensate mother wrongfully convicted in ‘shake baby’ case for miscarriage of justice no breach of Article 6
To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.
- EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts – ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
- Rally for Legal Aid – July 30, 16:30 Old Bailey
- Prosecutorial Discretion and the Rule of Law – 16 July, 18:00-20:00 – Hogan Lovells, Atlantic House, Holborn Viaduct, London, EC1A 2FG
- Part 82: The worrying new rules of the Secret Court – July 12, 2013 by Angela Patrick
- Sea fishing, quotas and A1P1: “no-one owns the sea” – July 11, 2013 by David Hart QC
- NOT AGAIN! ‘EU Judges’ Behind ‘Victory For Evil’, Says Sun – July 10, 2013 by Adam Wagner
- Damning indictment of police actions surrounding death of Azelle Rodney – July 10, 2013 by Sarabjit Singh
- So we cannot see Prince Charles’ advocacy letters after all – July 9, 2013 by David Hart QC
- Radical but risky changes afoot at the European Court of Human Rights – July 9, 2013 by Andrew Tickell
- Convicted murderers win Article 3 case against whole life sentences in Strasbourg – July 9, 2013 by Rosalind English
- Guerilla gardening in unlawfully occupied property did not give rise to Article 8 rights – July 8, 2013 by Rosalind English
- The Times on Abu Qatada – July 8, 2013 by Adam Wagner